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Swenson & City of La Quinta /Defense and Indemnity Agreement 16DEFENSE AND INDEMNITY AGREEMENT Joseph McVeigh v. City of La Quinta, et al. Riverside Superior Court Case No. RIC 1606159 This Defense and Indemnity Agreement ("Agreement") is made and entered into by and between the City of La Quinta ("La Quinta") on the one hand, and Case and Lisa Swenson (collectively, "Swenson") on the other hand (collectively referred to as "Parties"). A. The Parties share a common interest in successfully defending against the pending lawsuit entitled Joseph McVeigh v. City of La Quinta, et al. (Riverside Superior Court Case No. RIC 1606159) (the "Action"). The Action challenges Conditional Use Permit 2013-152 for a single family home ("Project"), and the Mitigated Negative Declaration prepared for the Project. B. The Parties believe that the sharing among themselves of confidential and privileged information and documents, including attorney work product, in the Action is mutually beneficial to the Parties in the pursuit of their objectives, including, without limitation, the successful defense against the Action. State law provides for the confidentiality of materials and communications among parties made in the course of pending litigation in areas of common interest so that the claims and defenses of the parties are thoroughly investigated and prepared without giving undue advantage to the adversaries of the parties. C. In addition, pursuant to Condition No. 1 of Conditional Use Permit No. 2013-152, Swenson is obligated to defend and indemnify La Quinta in the event of litigation arising from the Project. Therefore, the Parties hereto, agree as follows: 1. Swenson agrees to defend, indemnify and hold harmless La Quinta from any costs or expenses resulting from the Action, including the City's attorneys' fees and litigation costs, as well as any attorneys' fees or litigation costs the City is required by final judgment to pay to the Petitioner in the Action. To that end, concurrent with the execution of this Agreement, Swenson shall deposit $25,000 with City's Finance Department to fund City's defense by counsel of its choosing, namely, Rutan & Tucker, LLP ("Rutan"). City shall establish a deposit account for the defense of the Action. City will fund the costs and expenses solely from the deposit account. Once the funds in deposit account have been depleted to $5,000 or less, City shall notify Swenson in writing, and Swenson shall, within 15 days, replenish the deposit account to $25,000, and shall do so until the conclusion of the Action. The City shall provide copies of Rutan's invoices to Swenson upon request. Swenson shall treat the invoices as confidential. If Swenson fails to fund City's defense, City will have no duty to continue to defend against the Action, and it may take the steps it deems necessary to terminate the Action as to it, including, but not limited to, settlement, and/or revocation of the approval of the Project. 2. The Parties agree to coordinate their efforts in defending against the Action in order to seek to efficiently handle their respective defenses in the Action. Provided that Swenson is in compliance with this Agreement, City agrees that it will not reach a settlement with the Petitioner without the consent of Swenson. Swenson reserves the right to settle the Action with or without the consent of City, provided that the settlement and/or any claims arising from the Page 1 of 3 DEFENSE AND INDEMNITY AGREEMENT settlement are at no cost to the City, and do not require the City to take any actions other than as other than providing its consent to the dismissal of the Action or similar such consent that does not impose obligations upon the City that the City finds objectionable.. 3. The Parties and their counsel may share materials, documents, communications or other information that are privileged or confidential without waiving said privileges or confidences that protect the information. Communication or exchange of any materials or information, whether oral, written, or electronic between the Parties to this Agreement shall not constitute, nor be construed as a waiver or implied waiver of any privilege, protection, work product doctrine, or right of non -disclosure attaching to such material or information. 4. Confidential and privileged documents and information covered by this Agreement shall be maintained in such a manner so that no intentional or unintentional disclosure is made that might compromise any asserted privilege. 5. At the request and option of either Party, privileged or confidential documents generated by that Party shall be returned to that Party or shall be destroyed by the receiving Party, subject to any applicable federal and state laws mandating recordkeeping. 6. This Agreement is not meant to detract or derogate from the applicability of any privilege or immunity that would otherwise apply under the law, nor is this Agreement intended to create any rights of any kind in any person or entity that is not a Party to this Agreement. Nothing in this Agreement shall obligate any Party to share any privileged or confidential information with another Party, or limit any privilege or immunity of any Party as against any other Party with respect to privileged and confidential materials or information that is not shared. 7. This Agreement applies to privileged and confidential documents and communications which may have been shared by the Parties prior to the formal execution of the Agreement, and to that extent, this Agreement is intended to continue the prior understanding of the Parties that such materials and information are confidential and privileged. 8. Neither this Agreement nor any actions taken under it shall constitute, or be deemed to create, a conflict of interest should the interest of the Parties become adverse in connection with this litigation or any future litigation or proceedings. Neither the execution of this Agreement nor the sharing of information by the Parties under this Agreement shall provide the grounds for the disqualification of any attorney, consultant, or any other representative of any Party hereto, from the Action or any future administrative or judicial proceeding arising out of the Action. 9. This Agreement may be executed in counterparts by counsel for the Parties and will become effective and binding upon the Parties at such time as all of the signatories have executed a counterpart hereof. (Signatures on following page) Page 2 of 3 DEFENSE AND INDEMNITY AGREEMENT IN WITNESS WHEREOF, the parties have executed this Agreement as or the respective dates set forth below. "SWENSON" "CITY" — By. 110111 / •', By: �� , Nwo..-.r _ —. CC e 'wenson Frank J. ,ev-cek Its: Title: City Manager --- ----� By. Date Lisa Swenson Date: 1 ) G APPROVED AS TO FORM: APPROVED AS TO FORM: 1 By: SIGNED IN COUNTERPART By... .lennil'er T. ` gart Counsel 4" i C'tse and Lisa Swenson William H. Ihrke, City Attornef ly- Page 3 of 3 .10 INF DEITI\ISE AN 1) INDEMNITY Y AGR1 1 Mi Nf IN wrt'NEss NA/HER EOF, the parties have executed this Agreement as dale respective dares set forth below, "SWENSON" "oar' By: werson By: By: 'C._ Lisa Swolson Date: ,S )6, APPROVED AS To FORM: 3y! Jennifer r. 1,, will Counsel c HMI LjS'o Swenson Tide: City Manager Date. APPROVED AS TO FORM - William H. Ihrke, City Attorney Page 3 of 3 JOINT DITENSE AND INDF,MNITY AGRF:EMITNI SWENSON 2012 CND TR, F130 SLOANE CASE B. SWENSON LISA M. SWENSON 62 ELLENWOOD AVENUE LOS GATOS, CA 95030-$218 Pay to the Or, er of .1 .4 L1:44"1§64,0, Arii.ollA Expense Analyzer Morgan Staney 1139 2540(00 DDV eo ror C01,400 08010890 20 5063 200 2i L 1,39 City of La Quints ***Customer Receipt*** ****Thank you for your payment**** FOR QUESTIONS CALL:.760-777-7150 DATE : 6/8/2016 4:59 PM OPER : FC TKBY : SANDRA TERM : 1 REC# : R00003407 OD DEVELOPER DEPOSITS 25000.00 SWENSON DEV DEP#16-013 25000,00 DEVELOPER DEPOSITS 25000.00 Paid By:LISA & CASE SWENSON CK 25000.00 REF:1139 APPLIED 25000.00 TENDERED 25000.00 CHANGE 0.00 • 705,03 Yx..c-/ Go).ot cestitot4agla October 21, 2016 Via OnTrac Express Mail Case and Lisa Swenson Swenson Development 62 Ellenwood Avenue Los Gatos, CA 95030 Re: Notification to Replenish Deposit Account for Joseph McVeigh v. City of La Quinta, et al Riverside Superior Court Case No. RIC 1606159 Dear Mr. and Mrs. Swenson: In accordance with the DEFENSE AND INDEMNITY AGREEMENT entered into June 1, 2016, Section 1, once the funds in the deposit account have been depleted to $5,000 or less, the City shall notify the Swensons in writing, and the Swensons shall, within 15 days, replenish the deposit account to $25,000. The current balance in the deposit account is $3,972 therefore; this is your notice to replenish the account by sending a deposit check in the amount of $21,028. Kindly send payment within 15 days to the address below, attention: City Clerk. Thank you and feel free to contact me or the City Attorney's Office if you have any questions. Very truly yours, Susan Maysels City Clerk, City of La Quinta, CA Enclosures: Defense and Indemnity Agreement Swenson's First Deposit Check No. 1139 Accounting of Deposits and Withdrawals c: M. Katherine Jenson, Rutan & Tucker, LLP William H. Ihrke, City Attorney 78-495 Calle Tampico 1 La Quinta 1 California 92253 1 760.777.7000 1 www.La-Quinta.or8 5 O' SANICSE .C.''' , RIO .,,, 4, _o co 0 -7 25 t.,, Cli ZIV16,-Pti 3 1 cLa < 1--- m z o c pi n o s0 6, -.../-, , "40 /V-0 s01. od im9.s (96ah au,4, c4 44,aIX) 2011 9,7s3 111111111! I I p11111111111, t frit tip iii SWENSON 2012 CHD TR FBO SLOANE CASE B. SWENSON USA M. SWENSON 62 ELLENWOOD AVENUE LOS GATOS, CA 95030-5218 Pay to the /7 OrderMf • Morgan Stanley ia Date $ ,9t:%2( "1/0 Dollars el P2'jl UMB Bank, NA Kansas City, MO 64106 144048&3462 Expense Analyzer For 1:0440008041:139020506320020 ? 1147 25-80/440 RECEIVED OCT 2 7 2016 CITY OF LA QUINTA CITY CLERK DEPARTMENT RU TAN RLJTAN & TUCKER, LLP Rutan & Tucker, LLP 611 Anton Blvd., Suite 1400 PO Box 1950 Costa Mesa, CA 92628-1950 (714)641-5100 Fax (714) 546-9035 www.rutan.com ORANGE COUNTY PALO ALTO (650) 320-1500 A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS ACCOUNTING OF DEPOSITS AND WITHDRAWALS Transaction Date Initial Deposit 6/2/16 Payment - Invoice 750857 6/29/16 Payment - Invoice 753344 7/29/16 Payment - Invoice 755596 8/26/16 Payment - Invoice 758471 9/30/16 Remaining Balance Deposit 2' b6Pos,T (V7zoic 119/015610-0148 10252155.2 a10/20/16 + $25,000.00 Withdrawal Ufiit31 - $3,806.69 —$3,569.53 - $6,214.46 - $7,437.00 $3,972.32 RECEIVED OCT 2 0 2016 CITY OF LA ODOM Cm' CLERK DEPARTMENT October 21, 2016 703,03 ItItc'Vlif/ a44u14L Via OnTrac Express Mail Case and Lisa Swenson Swenson Development 62 Ellenwood Avenue Los Gatos, CA 95030 Re: Notification to Replenish Deposit Account for Joseph McVeigh v. City of La Quinta, et al Riverside Superior Court Case No. RIC 1606159 Dear Mr. and Mrs. Swenson: In accordance with the DEFENSE AND INDEMNITY AGREEMENT entered into June 1, 2016, Section 1, once the funds in the deposit account have been depleted to $5,000 or less, the City shall notify the Swensons in writing, and the Swensons shall, within 15 days, replenish the deposit account to $25,000. The current balance in the deposit account is $3,972 therefore; this is your notice to replenish the account by sending a deposit check in the amount of $21,028. Kindly send payment within 15 days to the address below, attention: City Clerk. Thank you and feel free to contact me or the City Attorney's Office if you have any questions. Very truly yours, stA44t,h, Susan Maysels City Clerk, City of La Quinta, CA Enclosures: Defense and Indemnity Agreement Swenson's First Deposit Check No. 1139 Accounting of Deposits and Withdrawals c: M. Katherine Jenson, Rutan & Tucker, LLP William H. Ihrke, City Attorney 78-495 Calle Tampico 1 La Quinta 1 California 92253 1 760.777.7000 1 www.La-Quinta.org SWENSON 2012 CHD TR FBO SLOANE CASE B. SWENSON LISA M. SWENSON 62 ELLENWOOD AVENUE LOS GATOS, CA 95030-5218 Pay to the Order of UMB Bank, NA Kansas City, MO 64106 1-800-688-3462 Expense Analyzer Morgan Stanley / Autu _ $ ovo For__ 1:04400013041:690 205063 200 20 1 3ity of La Quinta KoCustomer Receipt*** ***Thank you for your payment**** FOR QUESTIONS CALL: 760-777-7150 DATE : 11/22/2016 2:54 PM OPER FC TKBY : SANDRA TERM : 1 REC# : R00003867 00 DEVELOPER DEVELOPER DEPOSITS 22000,00 SWENSON DEV DEP #16-013 22000.00 SWENSON DEV DEP #16-013 22000.00 Paid By:LISA M SWENSON CK 22000.00 REF:1147 APPLIED 22000.00 TENDERED 22000.00 CHANGE 0,00 1 147 25-80/440 Dollars 21